| [2016] FWCFB 6591 |
| FAIR WORK COMMISSION |
STATEMENT |
Fair Work Act 2009
s.156 - 4 yearly review of modern awards
JUSTICE ROSS, PRESIDENT |
MELBOURNE, 14 SEPTEMBER 2016 |
4 yearly review of modern awards - common issue - award flexibility - time off instead of payment for overtime.
[1] In a Statement 1 issued on 5 September 2016 we outlined how we intended to deal with the 21 awards that provide for time off instead of payment for overtime (TOIL) at overtime rates and the eight awards that were the subject of award specific submissions during the earlier consultation process.
[2] In respect of three of the 21 awards mentioned there is some doubt as to whether or not TOIL is to be taken at the overtime rate. The three awards in question are:
Airport Employees Award 2010 Electrical Power Industry Award 2010 Horse and Greyhound Training Award 2010 [3] In order to provide interested persons with an opportunity to comment on the status of the TOIL provisions in these three awards they were listed for a conference at 9:30 am on Monday 12 September 2016. [4] As to the other eight awards, directions issued on 6 October 2015 gave interested persons an opportunity to make submissions on why a particular award should not be varied to include a model TOIL term. Submissions in relation to the following eight awards were received and are summarised in Attachment B to our Statement of 5 September 2016: [5] These awards were listed for conference at 10 am on Monday, 12 September 2016. [6] The purpose of this Statement is to set out the next steps to be taken to finalise these matters having regard to the views expressed at the conferences held on 12 September 2016. A transcript of the conference is available on the Commission website. 2. TOIL at overtime rates [7] As mentioned, a conference was held on 12 September 2016 in respect of the three awards referred to in paragraph [2]. [8] Consistent with the views expressed at the conference the insertion of the model TOIL term in the Airport Employees Award 2010 will be referred to the award stage of the Review so that it may be dealt with at the same time as a plain language re-write of clause 30.8. In respect of the Electrical Power Industry Award 2010 and the Horse and Greyhound Training Award 2010 we will proceed on the assumption that the relevant clauses in these awards provide for TOIL at overtime rates. Consistent with the process outlined in our Statement of 5 September 2016 (at paragraphs [5]-[6]) we will publish draft variation determinations and provide interested persons with four weeks to comment. Following this consultation process we will make a decision on the final form of the determinations varying these awards. 3. Award specific issues [9] The next steps to be taken in respect of each of the awards which were the subject of the conference on 12 September 2016 are set out below. [10] The provisional view of the Full Bench is that this award should be varied to insert the model TOIL term. A draft variation determination will be published shortly. Any interested person wishing to contest the Full Bench’s provisionally expressed view or to comment on the terms of the proposed variation determination will be provided with an opportunity to do so. [11] Given the particular features of the industry covered by this award (as outlined in Live Performance Australia’s written submission of 9 November 2015 at paragraphs 7-24) the insertion of the model TOIL term in this award will be referred to the award stage of the Review. [12] Those parties opposed to the insertion of the model TOIL clause in this award will have six weeks to file a proposed variation determination and further submissions and evidence in support of their position. Draft directions are set out at Attachment A. [13] The ASU has filed a written submission in respect of the variation of this award to insert the model TOIL term in which they seek to retain an aspect of the existing award term which provides that overtime not taken as TOIL is paid out at the rate of pay applying at the time the payment is made. In the alternative, if the modified model TOIL term proposed was not accepted, the ASU would prefer to retain the existing TOIL term. ABI is content with the alternate position advanced by the ASU. [14] Our provisional view is that the award be varied to insert a modified version of the model TOIL term which retains some of the features of the existing award term and some elements of the model TOIL term, though without all of the safeguards. A draft variation determination will be published shortly. Any interested person wishing to contest the Full Bench’s provisionally expressed view or to comment on the terms of the proposed variation determination will be provided with an opportunity to do so. [15] ASMOF withdrew its pervious opposition to the model TOIL term extending beyond doctors in training but maintained its position that the model TOIL term should be modified to reflect the existing award term in respect of when TOIL must be taken. In particular, ASMOF seeks to retain a provision requiring TOIL to be taken within four weeks of the overtime being worked. The comparable provision in the model term provides that TOIL is to be taken within six months of the overtime being worked. In support of the retention of this aspect of the existing TOIL term ASMOF submits:
‘Doctors in training as part of their training programme are required to ‘rotate’ or undertake ‘terms’ at a variety of workplaces, including interstate in some cases. In these circumstances, any proposal that has the effect of extending the time period in which TOIL is to be taken will be more difficult to administer than the current award provisions. This may lead to difficulties in enforcing these entitlements for doctors in training.’ 2 [16] The HSU supported ASMOF’s submission. [17] Given the particular issues identified by ASMOF we will vary the award to insert a modified model TOIL term, though without all of the safeguards. The model TOIL term will be varied so that it incorporates that part of the existing TOIL term which requires TOIL to be taken in four weeks or paid out. [18] A draft variation determination will be published shortly and interested persons will have four weeks to comment. Following this consultation process we will make a decision on the final form of the determination varying this award. [19] The NFF remains opposed to the insertion of the model TOIL term into these awards. [20] The NFF will have six weeks to file further submissions and evidence in support of its position. Draft directions are set out at Attachment A. [21] The provisional view of the Full Bench is that this award should be varied to insert the model TOIL term. A draft variation determination will be published shortly. Any interested person wishing to contest the Full Bench’s provisionally expressed view or to comment on the terms of the proposed variation determination will be provided with an opportunity to do so. Next steps [22] Interested persons will have until 4pm Wednesday 21 September 2016 to comment on the draft directions set out at Attachment A. Final directions will be issued shortly after the consultation process has closed. PRESIDENT ATTACHMENT A – Draft directions 1. Variation determinations in respect of the Broadcasting and Entertainment Award 2010; the Social, Community, Home Care and Disability Services Award 2010 and the Clerks-Private Sector Award 2010 will be published in the week commencing 19 September 2016. Interested parties will have until 4pm Wednesday 19 October 2016 to comment on the terms of the draft variation determinations and the Full Bench’s provisionally expressed view that these awards be varied to insert the model TOIL term. Following this consultation process the Full Bench will make a decision on the final form of the determinations varying these awards on the basis of the material filed without a further hearing. 2. A variation determination in respect of the Medical Practitioners Award 2010 will be published in the week commencing 19 September 2016 reflecting the Full Bench’s decision at paragraph [17] of its Statement of 14 September 2016. Interested parties will have until 4pm Wednesday 19 October 2016 to comment on the terms of the draft variation determination. Following this consultation process the Full Bench will make a decision on the final form of the determination varying this award on the basis of the material filed without a further hearing. 3. In relation to the Journalists and Published Media Award 2010, the Pastoral Award 2010 and the Horticulture Award 2010 those opposed to the variation of these awards to insert the model TOIL term are to file further submissions and evidence in support of this position by 4pm Wednesday 26 October 2016. Any submission and evidence in reply is to be filed by 4pm Wednesday 16 November 2016. A hearing in respect of these awards will take place at 9:30am on Monday 5 December 2016 in Sydney. Any requests for video links should be made to chambers.ross.j@fwc.gov.au by close of business on Wednesday, 30 November 2016. 4. Liberty to apply. 2 ASMOF submissions 10 November 2015 at paragraph 13 Printed by authority of the Commonwealth Government Printer <Price code C, PR585389>